Digests

Badjeck v. Canada (Minister of Citizenship and Immigration)

T-2092-00

2001 FCT 1301, Rouleau J.

28/11/01

23 pp.

Appeal from decision by Citizenship Judge denying plaintiff's application for Canadian citizenship on ground did not meet residence requirements laid down in Act, s. 5(1)(c) as failed to show had both intention and in fact centralized mode of living in Canada--From 1970 to 1976 plaintiff student at University of Montréal pursuing studies for doctorate in economics--In 1973, plaintiff for first time obtained permanent residence status in Canada which he lost by permanently living abroad with wife from 1979 to 1993-- In June 1993 plaintiff and family settled in Canada in capacity as permanent resident of Canada--From January 1998 to January 1999 plaintiff worked for United Nations Food and Agriculture Organization (FAO) in Tanzania--From 1993 to February 1999 acted as genuine Canadian resident, filing tax returns in Canada, paying taxes and having all ties here--All plaintiff's property and assets in Canada--In February 1999 plaintiff filed application for Canadian citizenship with Citizenship Court, Citizenship and Immigration Canada-- Citizenship Judge concluded plaintiff had not met conditions regarding residence in Canada as had been absent from Canada for period totalling 1,419 days during period from June 30, 1993 to February 16, 1999--Whether based on facts in evidence before Citizenship Judge, supporting plaintiff's citizenship application, Citizenship Judge made error of law when concluded plaintiff did not meet residence requirements laid down in Act, s. 5(1)(c) and in particular had not established or maintained residence in Canada and had not centralized mode of existence in Canada--Full-time physical presence in Canada not essential condition of residence-- Applicable standard of review in citizenship appeals determined by Court to be correctness--Citizenship Judge's decision in case at bar could be quashed if completely disregarded important evidence without explanation--Plaintiff had to show objectively established his own residence in Canada to be deemed resident of country during absences from Canada since 1993--Mere intention to establish residence will not suffice--During relevant four-year period preceding February 16, 1999, date of citizenship application, plaintiff physically present in Canada for less than 100 days--Citizenship Judge adopted very limiting approach in interpretation of residence requirement and made error by placing undue emphasis on number of plaintiff's prolonged and non-temporary absences from Canada and not taking into account all relevant evidence in record in analysis dealing with residence--Plaintiff clearly established home in Canada with obvious intention of keeping permanent residence here--Defendant not able to prove plaintiff had significant connection with any country other than Canada--Citizenship applicant who obviously and finally elects domicile in Canada with clear and definite intention of having permanent roots in this country, like plaintiff in case at bar, should not be deprived of citizenship simply because must earn his living and that of his family by working abroad--Citizenship Judge's decision wrong--Application allowed Citizenship Act, R.S.C. 1985 c. C-29, s. 5 (am. by R.S.C. 1985, (3rd Supp.), c. 44, s. 1; S.C. 1992, c. 21, s. 7; 2000, c. 12, s. 75).